James E. Joyner v. Crane Co.

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:12-cv-02294-CCB Copies to all parties and the district court/agency.[999416262].. [13-1868]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1868

KATHLEEN R. WOOD, Personal Representative for the Estate of
James E. Joyner,
Plaintiff – Appellee,
v.
CRANE CO., individually and as successor to National−U.S.
Radiator, is a Delaware Corporation with its principal
place of business in Connecticut,
Defendant – Appellant,
and
A.C. & R INSULATION CO., INC.; ALLEN−BRADLEY COMPANY, INC.;
ALLIS−CHALMERS
ENERGY,
INC.;
AIR
&
LIQUID
SYSTEMS
CORPORATION, Successor by Merger to Buffalo Pumps, Inc.;
A.O. SMITH CORPORATION; ARMSTRONG INTERNATIONAL, INC.;
AQUA−CHEM, INC., d/b/a Clever−Brooks Division; AURORA PUMP,
CO; A.W. CHESTERTON, INC.; BW/IP, INC., and its wholly
owned subsidiaries as successor−in−interest to BW/IP;
CARRIER CORP.; CBS CORPORATION, f/k/a Viacom, Inc., as
successor
to
Westinghouse
Electric
Corp.;
CERTAINEED
CORPORATION;
CLEAVER−BROOKS
COMPANY;
COLUMBIA
BOILER
COMPANY; CROWN CORK & SEAL COMPANY, INC.; EATON ELECTRICAL,
INC., f/k/a Cutler Hammer, Inc.; ELLIOTT COMPANY I, f/k/a
Elliott
Turbomachinery
Co.
Inc.;
FMC
CORPORATION,
individually,
on
behalf
of
its
Former
Construction
Equipment
Group
&
Former
Peerless
Pump
Division;
FOSTER−WHEELER LLC; FOSTER WHEELER ENERGY CORPORATION,
f/k/a Foster Wheeler Corporation; GARDNER DENVER, INC.;
GARDNER DENVER NASH, LLC, a/k/a Gardner Denver, Inc., f/k/a
Nash Elmo Industries, LLC; GENERAL ELECTRIC COMPANY;
GEORGIA−PACIFIC, LLC; THE GOODYEAR TIRE & RUBBER COMPANY,
individually
and
as
successor−in−interest
to
Durabla
Manufacturing; GOULDS PUMPS, INC., a subsidiary of ITT
Industries, Inc.; THE GRISCOM−RUSSELL COMPANY, f/k/a The

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Dial Corporation, a Delaware Corporation; H.B. FULLER
COMPANY, Successor/or parent of Benjamin Foster Division of
Amchem Products, Inc.; H.B. SMITH COMPANY, INC., a/k/a
Smith Cast Iron Boilers; HONEYWELL INTERNATIONAL, INC.;
HOPEMAN BROTHERS, INC.; IMO INDUSTRIES, INCORPORATED,
individually and on behalf of and successor to DeLaval;
DeLaval Stream Turbine Co., IMO DeLaval and Warren Pump
Co.; INGERSOLL−RAND COMPANY; INTERNATIONAL PAPER COMPANY,
INC.; JOHN CRANE, INC.; KAISER GYPSUM COMPANY, INC.;
MCNALLY
INDUSTRIES,
INC.,
individually
and
as
successor−in−interest to Northern Pump Company and Northern
Fire
Apparatus
Company;
MCIC,
INC.,
f/k/a
McCormick
Asbestos Co.; METROPOLITAN LIFE INSURANCE CO.; NATIONAL
SERVICE INDUSTRIES, INC., f/k/a North Brothers, Inc.;
OWENS−ILLINOIS, INC.; RAPID−AMERICAN CORPORATION; RILEY
POWER, INC., f/k/a Babcock Borsig, Inc., f/k/a Riley Stoker
Corporation; SB DECKING, INC., f/k/a Selby, Battersby &
Company; SEALING EQUIPMENT PRODUCTS CO. INC.; SIEMANS DEMAG
DELAVAL
TURBOMACHINERY,
INC.,
f/k/a
Demag
Delaval
Turbomachinery, Inc.; SCHNEIDER ELECTRIC USA, INC., f/k/a
Square D Company; UNION CARBIDE CORPORATION; UNIROYAL,
INCORPORATED; VALEN VALVE CORPORATION; WALLACE & GALE
ASBESTOS SETTLEMENT TRUST; THE WALTER E. CAMPBELL COMPANY,
INC.; WARREN PUMPS, LLC, f/k/a Warren Pumps, Incorporated;
WEIL
PUMP
COMPANY
INC.;
WEIL−MCLAIN,
INC.;
YARWAY
CORPORATION;
ROCKWELL
AUTOMATION,
INC.,
successor−in−
interest to Allen−Bradley Co.,
Defendants.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(1:12-cv-02294-CCB)

Argued:

March 19, 2014

Decided:

August 15, 2014

Before DUNCAN, WYNN, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge Diaz wrote the opinion, in
which Judge Wynn joined. Judge Duncan concurred in the judgment
only.

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ARGUED:
Michael
James
Ross,
K&L
GATES
LLP,
Pittsburgh,
Pennsylvania,
for
Appellant.
Jacqueline
Gagne
Badders,
RUCKDESCHEL LAW FIRM, LLC, Ellicott City, Maryland, for
Appellee.
ON BRIEF: Nicholas P. Vari, Syed D. Ali, K&L GATES
LLP, Pittsburgh, Pennsylvania; Neil J. MacDonald, MACDONALD LAW
GROUP, LLC, Beltsville, Maryland, for Appellant.
Jonathan
Ruckdeschel, Z. Stephen Horvat, RUCKDESCHEL LAW FIRM, LLC,
Ellicott City, Maryland, for Appellee.

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DIAZ, Circuit Judge:
Crane

Company,

litigation,

removed

one

of

this

many

case

to

defendants
federal

in

this

court,

asbestos

asserting

a

federal defense to plaintiff James Joyner’s 1 state tort claims.
When

Joyner

amended

his

complaint,

eliminating

the

claims

underlying that federal defense, the district court remanded to
state court.

Crane now complains that it should have been given

the opportunity to assert a new basis for federal jurisdiction-even though it had declined to do so in a timely fashion.

We

affirm the district court’s decision to remand.

I.
A.
James Joyner was diagnosed with mesothelioma in March 2012.
His illness allegedly resulted from exposure to asbestos while
working as an electrician for the Coast Guard and then in the
private sector.
Joyner filed suit in Maryland state court, alleging (1)
strict liability for defective design and failure to warn; (2)
breach of implied warranty; (3) negligence products liability
claims; and (4) aiding and abetting and conspiracy to conceal
1

Joyner passed away during the course of these proceedings,
and his representative, Kathleen Wood, has been substituted in
the caption. We continue to refer to Joyner in our opinion.

4

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information
defendants

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about
a

the

number

dangers
of

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of

asbestos.

manufacturers

who

Joyner
allegedly

named

as

supplied

asbestos-containing materials with which he came into contact at
various points in his career.
Co.,

allegedly

manufactured

One of those defendants, Crane
and

supplied

asbestos-containing

valves and gaskets to the Navy, 2 on whose ships Joyner worked
while employed by the Coast Guard.
Crane removed the case to federal court under the federal
officer

removal

provision

statute.

allows

for

See

removal

28
of

U.S.C.
suits

§ 1442(a)(1).

against

“[t]he

That
United

States or . . . any officer . . . in an official or individual
capacity,
office.”

for
Id.

or

relating

to

any

act

under

color

of

such

In support of its position, Crane averred that it

would assert the federal contractor defense, as it had supplied
the valves in conformance with military specifications.
J.A. 42.

See

Crane’s notice of removal did mention that the valves

included gaskets as internal component parts, but Crane did not
explicitly assert the defense as related to gaskets.

See J.A.

42.

2

Joyner’s complaint did not identify the valves and gaskets
as the source of his injuries; this information became available
during the course of depositions, after which Crane filed its
notice of removal.

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Joyner moved to remand to state court, arguing that Crane’s
evidence

was

allegations.

insufficient
In

the

to

support

alternative,

its

Joyner

jurisdictional

moved

to

sever

the

valve claims against Crane and to remand the claims against the
other

defendants--as

well

Crane--to state court.

as

Joyner’s

gasket

claims

against

At oral argument before the district

court, Crane explicitly refused to take a position as to whether
the

federal

might

have

contractor

defense

supplied.

Rather,

applied
Crane

to

any

gaskets

apparently

Crane

sought

to

preserve its contention that the gaskets simply weren’t theirs.
See J.A. 2646 (“Crane has a different position with regard to
their

gasket

because

it

was

never,

never

on

the

Navy’s

QPL

[qualified products list] and should never have been used.”);
see also J.A. 2732 3 (“To be clear, it is Crane Co.’s position
that Mr. Joyner did not work with replacement Cranite gaskets on
Navy vessels because Cranite gaskets were not on any government
QPL list, and thus were not able to be ordered for use on Navy
vessels

through

however,

to

gaskets

“would

the

make

an
have

procurement
argument
been

process.”).
in

the

supplied

3

Crane

declined,

alternative--that
pursuant

to

the

detailed

This citation is to Crane’s opposition to Joyner’s notice
of abandonment and request for remand, filed on April 11, 2013
in the district court.

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government specifications”--until much later in the litigation.
J.A. 2732.
In a memorandum opinion and order issued March 7, 2013, the
district

court

found

that

Crane

had

sufficiently

supported

removal pursuant to § 1442(a)(1), focusing on the valve claims.
See Joyner v. A.C. & R. Insulation Co., No. CCB-12-2294, 2013 WL
877125 (D. Md. Mar. 7, 2013).

It did, however, grant in part

Joyner’s motion to sever the valve claims from all the others.
The court noted that it could exercise supplemental jurisdiction
over the other claims, but largely declined to do so.
found

that

state

law

claims

predominated

over

The court
the

claims

implicating the federal defense and that Maryland had a strong
interest in adjudicating its own state law claims, leading the
court to sever the claims against the other defendants.

But the

court also noted its interest in economy, which weighed against
forcing Crane to litigate claims regarding valves in one court
and gaskets in another.

Thus, the court remanded the claims

against the other defendants back to Maryland state court, but
retained both claims against Crane.
Shortly thereafter, Joyner filed a “notice of abandonment
of

claims

remand.”

regarding
J.A.

2722.

Crane
The

Co.

valves

notice

only

explained

and
that

request

for

Joyner

was

abandoning his claims against Crane with respect to its valves,
retaining only his claims involving injuries caused by Crane’s
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gaskets.
Crane’s

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See J.A. 2722–23, 2923.
removal

to

federal

court

Joyner argued that because
relied

on

the

government

contractor defense as to the valves alone, the district court
had no subject matter jurisdiction without those claims.
Crane vociferously contested Joyner’s motion, arguing that
Joyner

was

manipulating

his

complaint

to

avoid

federal

jurisdiction and that Federal Rule of Civil Procedure 15 does
not permit Joyner to amend his complaint with such precision.
Crane also argued that it could assert its federal defense in
relation to the gaskets.
The district court addressed these concerns in a memorandum
opinion and order on June 6, 2013.

See Joyner v. A.C. & R.

Insulation Co., No. CCB-12-2294, 2013 WL 2460537 (D. Md. June 6,
2013).

The

court

chose

to

construe

Joyner’s

notice

of

abandonment as a motion to amend his complaint under Rule 15(a).
Finding that such an amendment would not prejudice Crane, the
district court granted leave to amend.

The court found that

Crane had not asserted a federal defense with respect to gaskets
and that 28 U.S.C. § 1446(b) prevented Crane from asserting it
now,

well

beyond

notice of removal.
claims

for

the

thirty

days

that

provision

grants

for

The court also explained that any cross-

contribution

would

be

irrelevant,

forfeited any damages related to the valves.

as

Joyner

had

Thus, the defense

would not apply as to potential cross-claims from co-defendants.
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Accordingly,

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the

court

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remanded

Joyner’s

remaining

claims

to

Maryland state court.
B.
Crane

appeals

contending
court.

that

all

both

the

claims

March

should

7

and

6

orders,

remained

have

June

in

federal

The case is calendared for trial in the Circuit Court

for Baltimore City, and we think it belongs there.

Because the

district court did not err in remanding the Crane gasket claims
to

state

court,

we

need

not

evaluate

the

propriety

of

the

court’s earlier decision to remand the claims against the other
defendants, or whether we even have jurisdiction to consider
that question.

II.
As

an

initial

matter,

Joyner

jurisdiction to review this appeal.

asserts

that

we

have

no

We disagree.

Crane correctly observes that “[a]n order remanding a case
to the State court from which it was removed is not reviewable
on appeal or otherwise, except that an order remanding a case to
the State court from which it was removed pursuant to section
1442 or 1443 of this title shall be reviewable by appeal or
otherwise.”

28

U.S.C.

§ 1447(d).

This

case

was

originally

removed pursuant to § 1442(a)(1) and is thus reviewable.

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Joyner

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argues

that

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because

he

amended

his

complaint

to

disclaim any cause of action regarding the valves, the part of
the case that was removed pursuant to § 1442 simply no longer
exists.
were

As Joyner sees it, because the issues now before us

in

the

district

court

pursuant

to

its

supplemental

jurisdiction, they do not fall within the narrow exceptions of
§ 1447(d).
But Joyner ignores a basic proposition: that parties remove
cases,

not

“case”

removed

originally

claims.

Section

from

removed

state

pursuant

1447(d)
court.
to

the

explicitly
Because
federal

refers

this

case

officer

to

a

was

removal

statute, we have jurisdiction now.

III.
The district court remanded this case pursuant to 28 U.S.C.
§ 1447(c). 4

See J.A. 3007.

That statute provides that “[i]f at

4

To be clear, we recognize that the district court could
certainly have chosen to exercise supplemental jurisdiction even
after the valve claims were gone. See Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 357 (1988) (“[A] district court has
discretion to remand to state court a removed case involving
pendent claims upon a proper determination that retaining
jurisdiction over the case would be inappropriate.
The
discretion to remand enables district courts to deal with cases
involving pendent claims in the manner that best serves the
principles of economy, convenience, fairness, and comity which
underlie the pendent jurisdiction doctrine.”).
Our reading of
the March 7 and June 6 orders together suggests to us that the
district court declined to do so.
See Mangold v. Analytic
(Continued)
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any

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time

court

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before

lacks

remanded.”

final

subject
Id.

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judgment

matter

it

appears

jurisdiction,

that
the

the

case

district
shall

be

Crane contends that the district court never

“lack[ed] subject matter jurisdiction,” asserting that Joyner’s
disclaimer as to the valves was wholly ineffectual.

And in the

alternative,

assert

Crane

argues,

it

should

be

able

to

new

grounds for subject matter jurisdiction in response to Joyner’s
disclaimer.

We address each argument in turn, and in so doing,

interpret the relevant statutes de novo.

See Holland v. Pardee

Coal Co., 269 F.3d 424, 430 (4th Cir. 2001).
A.
Crane first asserts that Joyner’s disclaimer is a legal
nullity, devoid of real effect.
federal

district

court

has

Crane does not dispute that “a

discretion

under

the

doctrine

of

pendent jurisdiction to remand a properly removed case to state
court

when

all

federal-law

claims

in

the

action

eliminated and only pendent state-law claims remain.”

have

been

Carnegie-

Servs., Inc., 77 F.3d 1442, 1450 (4th Cir. 1996) (noting our
“power--and responsibility--to look past contextually ambiguous
allusions and even specific citations to § 1447(c) to determine
by independent review of the record the actual grounds or basis
upon which the district court considered it was empowered to
remand” (emphasis omitted)).
We simply understand the district
court to say that it no longer had an independent basis for
subject
matter
jurisdiction
besides
the
supplemental
jurisdiction it declined to exercise.

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Mellon
see

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Univ.

also

v.

Cohill,

Appellant’s

Br.

Pg: 12 of 25

484
16.

at

U.S.

343,

But

345

because

(1988);

the

federal

question arose from the defense to the dismissed claims, rather
than the claims themselves, Crane thinks different rules apply.
In support of this assertion, Crane cites to one unreported
district court case from outside our circuit.

That court held

that “[b]ecause removals pursuant to the federal officer removal
statute

are

premised

rather

than

neither

Plaintiff’s

a

on

the

of

artfully

plaintiff’s

existence

constructed

disclaimer

nor

[his] claims are determinative.”

[his]

a

federal

defense,

complaint,

characterizations

of

Brantley v. Borg-Warner Morse

Tec, Inc., No. 3:12cv540 AJB (JMA), 2012 WL 1571129, at *2 (S.D.
Cal.

May

3,

2012)

(internal

quotation

marks

and

citations

omitted).
Even

if

we

authority,

the

disclaimer”

of

officer

the

of

were
case
any

inclined
is

rest

our

distinguishable.

claims

United

to

related

States

to

the

Government,”

decision

on

“[D]espite
“direction
Brantley

such
[his]

of

an

“still

s[ought] damages arising out of his exposure to asbestos in and
around the Westinghouse turbines produced by Defendants while
serving in the United States Navy . . . .”
5

Id. 5

But here,

Brantley apparently contended that Westinghouse supplied
turbines with little or no direction from the Navy as to product
specifications.

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Joyner expressly disclaimed any damages--giving his disclaimer
real effect, unlike Brantley’s.
that

the

state

court

As we have no reason to believe

will

fail

to

hold

Joyner

to

this

disclaimer, it effectively precludes any defense based on the
valves alone.
Crane

also

argues

that

Joyner’s

amendment

should

be

disallowed as a “manipulative tactic[]” meant to evade federal
jurisdiction.
is

no

See Carnegie-Mellon, 484 U.S. at 357.

“categorical

prohibition”

on

such

But there

manipulation.

Id.

Instead, “[i]f the plaintiff has attempted to manipulate the
forum,
account

the

[district]

court

in

determining

whether

considered

under

the

remand in the case.”
Crane

Co.’s

federal

pendent
Id.

should
the

take

this

balance

jurisdiction

of

behavior
factors

doctrine

into
to

support

be
a

Crane’s bare assertion that “even if

defense

were

somehow

extinguished,

supplemental jurisdiction remained,” Appellant’s Br. at 14, is
insufficient to raise the issue of whether the district court
abused

its

discretion

in

declining

jurisdiction over the remaining claim.

to

exercise

supplemental

See Edwards v. City of

Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999) (“Failure to
comply with the specific dictates of this rule [requiring the
reasons for contentions and citations to authorities and the
record] with respect to a particular claim triggers abandonment
of that claim on appeal.”).
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B.
Accepting the disclaimer’s effect, we next consider whether
Crane may properly assert any other grounds of subject matter
Crane primarily argues 6 that it should have been

jurisdiction.

able to assert a federal defense regarding the gasket claims
after Joyner amended his complaint.

We think not.

As the district court noted, defendants have thirty days to
file a “short and plain statement of the grounds for removal”--a
window that had closed by the time Joyner amended his complaint.
28 U.S.C. § 1446(a).

The court reasoned that Crane should have

asserted any and all federal defenses within those thirty days.
Instead,
whether

Crane
the

explicitly

federal

refused

officer

to

defense

take

a

applied

position
to

the

as

to

gasket

claims.
1.
Crane first suggests that it should have been allowed to
amend its notice of removal, pursuant to 28 U.S.C. § 1653. 7

This

6

Crane also notes that the other defendants’ cross-claims
as to the valves remain in play, thus invoking the same defense.
But, as the district court explained, because Joyner disclaimed
any right to damages regarding the valves, any damages so
attributed would remain beyond his reach: Crane cannot be liable
to Joyner or any other defendant for that sum. The cross-claims
fall with the primary claim as a matter of course.
7

It is not clear to us that Crane made this argument before
the district court. But as we explain, the contention fails on
its merits.

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argument at first seems plausible on the face of the statute,
which provides that “[d]efective allegations of jurisdiction may
be amended, upon terms, in the trial or appellate courts.”

Id.

But courts generally apply the thirty-day limit to this statute
as well, at least in cases where the amendment is something more
than a minor technical correction.

See Nutter v. New Rents,

Inc., No. 90-2493, 1991 WL 193490, at *2 (4th Cir. Oct. 1, 1991)
(“We

. . .

merely

apply

perfects

the
a

majority

rule

technically

that

an

amendment

defective

which

jurisdictional

allegation in a timely filed removal petition may be allowed
after the 30-day removal period.”); see also Barrow Dev. Co. v.
Fulton Ins. Co. 418 F.2d 316, 317 (9th Cir. 1969) (“[S]ince
removal must be effected by a defendant within 30 days after
receiving a copy of the complaint, the removal petition cannot
be thereafter amended to add allegations of substance but solely
to

clarify

‘defective’

allegations

of

jurisdiction

previously

made.” (internal citations omitted)); 14C Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 3733 (4th ed.
2009)

(“In

completely

most

circumstances,

. . .

new

grounds

removal

for

defendants
or

may

furnish

not

add

missing

allegations, even if the court rejects the first-proffered basis
of removal . . . .”).

In short, “[t]he privilege of removal may

be lost if it is not asserted in time and in conformity with the
provisions of the statute.”

Richard H. Fallon, Jr. et al., Hart
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and Wechsler’s The Federal Courts and the Federal System 1433
(6th ed. 2009).
Our district courts have noted the tension between these
statutes, providing for a thirty-day window on the one hand and
amendment on the other.

The confusion, they assert, has caused

a split among our circuit’s district courts.

See, e.g., Covert

v. Auto. Credit Corp., 968 F. Supp. 2d 746, 750 (D. Md. 2013);
W. Va. v. Minn. Mining & Mfg. Co., 354 F. Supp. 2d 660, 668–69
(S.D.W. Va. 2005); Muhlenbeck v. KI, LLC, 304 F. Supp. 2d 797,
800–01 (E.D. Va. 2004).
The District of Maryland, for instance, has contrasted the
“strict

constructionist”

school

Covert, 968 F. Supp. 2d at 750.

with

the

“liberal

approach.”

Under the former, “amendments

after § 1446(b)’s thirty-day period are allowed only for the
purpose of setting forth more specifically grounds that had been
imperfectly stated in the original petition; missing allegations
may

not

be

supplied

nor

new

allegations

(internal quotation marks omitted).

furnished.”

Id.

Under the liberal approach,

it explains, supplemental allegations are permitted “where the
imperfection in the jurisdictional allegation is a mere defect.
However,
removal

even
was

under

this

completely

liberal

omitted

approach
as

opposed

if
to

a

ground

for

‘imperfectly

stated,’ the court has no discretion to permit amendment under

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§ 1653 and must remand the case to state court.”

Id. (internal

quotation marks, citations, and alterations omitted).
In our view, these two schools differ only in verbiage.
The upshot is the same: after thirty days, district courts have
discretion to permit amendments that correct allegations already
present in the notice of removal.

Courts have no discretion to

permit amendments furnishing new allegations of a jurisdictional
basis.
831

See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826,

(1989)

(“But

§ 1653

speaks

of

amending

‘allegations

of

jurisdiction,’ which suggests that it addresses only incorrect
statements

about

jurisdiction

that

actually

exists,

and

not

defects in the jurisdictional facts themselves.”); id. at 832
(“[E]very
§ 1653

Court

has

inadequate

held

of

Appeals

that

it

jurisdictional

jurisdictional facts.

that

has

allows

considered

appellate

allegations,

the

scope

courts

but

to

not

of

remedy

defective

We decline to reject this longstanding

interpretation of the statute.” (footnote omitted)).

The trick

lies in placing a case within one of those two categories.
Our precedent indicates that amendment is appropriate for
technical

changes,

such

diversity jurisdiction.

as

the

exact

grounds

underlying

For instance, in Nutter, the original

notice of removal claimed that the defendant was a “Kentucky
corporation”; we permitted an amendment stating that Kentucky
was merely the party’s “principal place of business.”
17

1991 WL

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193490, at *2.
F.3d

753

(4th

Pg: 18 of 25

Similarly, in Yarnevic v. Brink’s, Inc., 102
Cir.

1996),

the

original

petition

for

removal

cited both federal question and diversity jurisdiction.
at 754.

See id.

The petition listed the plaintiff’s domicile as Ohio,

though he had moved to Pennsylvania after filing his complaint-but either state would have supported diversity jurisdiction.
We held that “[w]hile it would have been prudent for Brink’s to
file

a

supplemental

petition

specifying

the

new

basis

for

diversity within 30 days . . . it was not required,” as the
“change of domicile information simply added new evidence to
rebut [the] motion to remand.”

Id. at 755; see also Newman-

Green, 490 U.S. at 831 (explaining that Ҥ 1653 would apply if
[a

party]

were,

in

fact,

domiciled

in

a

State

other

than

Illinois or was, in fact, not a United States citizen, but the
complaint did not so allege,” but would not apply “where the
complaint is amended to drop a nondiverse party in order to
preserve statutory jurisdiction”).
One could argue, of course, that the difference between
valves and gaskets is no broader than the difference between
Ohio

and

Pennsylvania:

both

relate

to

the

underscoring the same source of jurisdiction.

factual

bases

Here, however,

the district court made clear that the valves and gaskets were
being

treated

nonetheless

separately

chose

to

for

preserve

purposes
its
18

of

position

removal.
that

it

Crane
had

not

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supplied

the

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gaskets.

That

Pg: 19 of 25

decision--made

in

open

court--

suggests that Crane’s failure to include gaskets as a ground for
removal was no “mere inadvertence,” see Clephas v. Fagelson,
Shonberger, Payne & Arthur, 719 F.2d 92, 94 (4th Cir. 1983), nor
a clerical error, but instead a strategic choice.

As a result,

the district court correctly denied as untimely Crane’s attempt
to amend its notice of removal to include the gasket claims.
2.
Crane

also

argues,

in

a

amendment was necessary at all.

final

alternative,

that

no

Once the initial removal was

deemed appropriate, it posits, the notice of removal--and the
contents thereof--ceased to matter.
But federal jurisdiction, in such a case, is contingent on
removal.

Indeed, the statute simply provides that such a suit

“may be removed by [the officer] to the district court,” 28
U.S.C. § 1442(a); it “does not enlarge the original jurisdiction
of the district courts,” Mir v. Fosburg, 646 F.2d 342, 345 (9th
Cir. 1980).

Thus, having failed to assert the specific defense

it now invokes when it removed the action, Crane cannot rely on
§ 1442(a) as an independent jurisdictional hook.

See Mesa v.

California, 489 U.S. 121, 136 (1989) (“Section 1442(a) . . .
cannot

independently

jurisdiction.

support

Art.

III

‘arising

under’

Rather, it is the raising of a federal question

in the officer’s removal petition that constitutes the federal
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law under which the action against the federal officer arises
for Art. III purposes.”).
And none of the cases Crane puts forth require a different
outcome.

Crane purports to rely primarily on Jamison v. Wiley,

14 F.3d 222 (4th Cir. 1994).
to the question at hand.

That case, however, is inapposite

In Jamison, the defendant--a federal

employee accused of sexual assault--removed the case to federal
court under the federal officer removal statute and the Westfall
Act, asserting that he had been acting within the scope of his
duties.

At that time, the Department of Justice had agreed to

provide his defense.
its mind.

At some point thereafter, the DOJ changed

The district court decided, as a result, that the

defendant had not been acting within the scope of his duties and
that the federal officer defense was no longer meritorious, and
remanded to state court.
We reversed, explaining that “removal jurisdiction exists
whenever

the

defendant-official

asserts,

in

his

petition, a ‘colorable’ federal defense to the action.”
239.

removal
Id. at

Thus, Jamison stands for the innocuous proposition that

later evidence regarding the merits of a defense does not impact
the

propriety

of

its

pleading.

Here,

by

contrast,

we

are

confronted with a defense that was never adequately asserted in
the first place.

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Two

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other

discussion.

cases

relied

Pg: 21 of 25

on

by

Crane

warrant

further

In Willingham v. Morgan, 395 U.S. 402 (1969), the

Supreme Court confronted a similar issue where defendants had
asserted the federal officer defense.

In his motion for remand,

the plaintiff alleged that the defendants were not acting within
the scope of their official duties at the time in question.

The

Court pointed out that “[t]he only facts in the record which in
any way respond to this allegation appear in [the defendants’]
affidavits in support of their motion for summary judgment.”
Id. at 407.

In a footnote, the Court stated, “This material

should have appeared in the petition for removal.
purposes

of

this

petition

as

if

had

it

been

is

proper

amended

to

to

treat

include

the

removal

the

relevant

information contained in the later-filed affidavits.”

Id. at

407 n.3.

it

review,

However, for

This language indicates that the notice of removal

itself--rather than any subsequent docket entry--is the document
to which the court must refer.
At first glance, Willingham appears to be in tension with
our explanation of the impropriety of belated amendment.

But a

closer look reveals that the amendment permitted in Willingham
went to the merits of a previously raised ground for removal,
rather than the assertion of the ground itself.
Circuit agreed,

21

As the Third

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[t]he
Supreme
Court
has
upheld
removal
where
jurisdictional facts required to support the removal
were found in later-filed affidavits rather than in
the notice of removal. . . . . [W]e are satisfied that
sections 1446(a) and 1653, together with the Supreme
Court’s opinion in Willingham, permit a court to
consider jurisdictional facts contained in later-filed
affidavits as amendments to the removal petition
where, as here, those facts merely clarify (or correct
technical deficiencies in) the allegations already
contained in the original notice.
USX Corp. v. Adriatic Ins. Co., 345 F.3d 190, 205 n.12 (3d Cir.
2003); see also Ruppel v. CBS Corp., 701 F.3d 1176, 1184 n.1
(7th Cir. 2012) (“CBS could also have amended its notice of
removal and added supporting exhibits under 28 U.S.C. § 1653
. . . .” (citing Willingham)); cf. In re Methyl Tertiary Butyl
Ether (“MTBE”) Prods. Liab. Litig., 488 F.3d 112, 129 (2d Cir.
2007)

(noting

that

the

defendants

had

not

made

a

particular

allegation in the notice of removal, “[n]or do they cite any
later-filed affidavits which could provide the basis for us to
treat

the

allegations”

removal
(citing

petitions

as

amended

Willingham)).

Thus,

to

include

Willingham

those

comports

with our understanding of the importance of--and limits to-amending the notice of removal.
Williams v. Costco Wholesale Corp., 471 F.3d 975 (9th Cir.
2006), is also of no help to Crane.

There, the defendant had

removed on the basis of federal question jurisdiction, and when
the plaintiff amended his complaint to remove the federal claim,
the district court remanded.

The Ninth Circuit held that the
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remand

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was

inappropriate

Pg: 23 of 25

because

the

district

court

had

diversity jurisdiction as well--even though the defendant had
not asserted diversity in its notice of removal.

The court

postulated that “post-removal amendments to the pleadings cannot
affect whether a case is removable, because the propriety of
removal is determined solely on the basis of the pleadings filed
in state court.”
a

case

has

Id. at 976.

been

properly

The court then held that “[o]nce
removed,

the

district

court

has

jurisdiction over it on all grounds apparent from the complaint,
not just those cited in the removal notice”--grounds asserted
well

before

the

thirty-day

deadline.

Id.

at

977

(emphasis

added).
The Ninth Circuit’s approach, which mirrors that of the
Fifth Circuit, 8 has been criticized as contrary to well-settled
practice.

See

Jeannette

Jurisdictional

Grounds,

(arguing

the

that

Fifth

Cox,

86

N.C.

and

Removed
L.

Ninth

Cases

Rev.

937,

Circuits

and

Uninvoked

953–57

“have

(2008)

failed

to

adequately explain their departure from the traditional approach
to

uninvoked

jurisdictional

grounds”).

8

But

even

were

we

to

See Buchner v. F.D.I.C., 981 F.2d 816, 818 (5th Cir. 1993)
(“The fact that the FDIC waived its right to remove the instant
case is irrelevant to the determination of whether the case
should have or could have been remanded once it had been
properly removed by another party who had not waived the right
to remove.”).

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accept those principles, they do not control the result here.
Contrary to Crane’s view of things, we do not take the Ninth
Circuit’s language as carte blanche for defendants to assert new
grounds for removal at any time (as was the case here), but
rather an invitation for the court to look at those grounds
already before it.
Our
waive 9

litigation

model:

complaint,

if

or

system

a

a

typically

litigant

defense

in

fails
an

operates
to

on

raise

answer,

or

a
to

efficiency

and

discourages

sandbagging.

raise-or-

claim

in

preserve

objection at trial, they are generally out of luck.
forces

a

a
an

This model
It

is

thus

reasonable to expect that a litigant would raise every ground
for

removal

in

his

initial

filing.

Such

a

rule

prevents

precisely the incessant back-and-forth controversy we see here. 10
Crane made a strategic decision not to assert removal as to the

9

Though “raise-or-waive” is the usual nomenclature, in
reality, of course, courts--including us here--often mean
“raise-or-forfeit.”
“Waiver is different from forfeiture.
Whereas forfeiture is the failure to make the timely assertion
of a right, waiver is the intentional relinquishment or
abandonment of a known right.” United States v. Olano, 507 U.S.
725, 733 (1993) (internal quotation marks and citation omitted).
10

The thirty-day window for asserting federal jurisdiction
runs from the moment the grounds for such jurisdiction become
apparent, rather than the filing of the complaint--thus
preventing
the
plaintiff
from
sandbagging
by
hiding
jurisdictional grounds in a first complaint and later amending
it to add them. See 28 U.S.C. § 1446(b)(3).

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claims.

We

gasket

usually

Pg: 25 of 25

hold

parties

to

that

sort

of

strategic decision, and are unable to discern why this situation
would merit a departure from the general rule.
We hasten to underscore the narrowness of our holding.

It

may seem unjust, at first glance, that Joyner was allowed to
amend his complaint to withdraw the relevant claims, but that
Crane may not respond by restructuring its defense.
is

already

a

remedy

in

place

for

such

a

scenario:

But there
had

the

district court thought that Joyner’s manipulative tactics were
too

sharp,

it

had

every

opportunity

to

federal court as a matter of discretion.

retain

the

case

in

“The district courts

thus can guard against forum manipulation . . . .”

Carnegie-

Mellon, 484 U.S. at 357 (explaining that a party’s manipulative
tactics are a factor the district court should weigh in deciding
whether to retain the case in federal court).

We trust that

they will do so.

IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.

25